Donald Ray McCray v. Stephen W. Allee

IN THE TENTH COURT OF APPEALS No. 10-07-00055-CV Donald Ray McCray, Appellant v. STEPHEN W. ALLEE, et al, Appellees From the 12th District Court Walker County, Texas Trial Court No. 23416 MEMORANDUM Opinion In Cause No. 10-06-00279-CV, on February 7, 2007, this Court dismissed Appellant Donald McCray’s appeal. McCray v. Allee, No. 10-06-00279-CV, 2007 WL 416412 (Tex. App.—Waco Feb. 7, 2007, no pet.). In that appeal the complained-of order was the trial court’s August 3, 2006 order declaring McCray to be a vexatious litigant and requiring him to furnish $1,000 as security by February 1, 2007. Because McCray’s cause in the trial court had not yet been dismissed and the August 3, 2006 order was not an appealable interlocutory order, we dismissed McCray’s appeal in Cause No. 10-06-00279-CV for lack of jurisdiction. See id. On February 26, 2007, McCray’s notice of appeal in the same trial court cause (No. 23416) was filed and docketed in this Court as No. 10-07-00055-CV. We requested and have received a supplemental clerk’s record in Cause No. 23416, and it contains an August 31, 2006 order vacating the complained-of August 3, 2006 order. The supplemental clerk’s record contains no final judgment or order of dismissal. In our January 18, 2008 letter, we notified McCray that this court may not have jurisdiction over this appeal because it appears that there is not an appealable interlocutory order or a final judgment in this case. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (Vernon Supp. 2007) (listing types of interlocutory orders that are appealable); see, e.g., Phillips v. Phillips, 2004 WL 2903519 (Tex. App.—Houston [1st Dist.] Dec. 16, 2004, no pet.) (dismissing interlocutory appeal of order declaring plaintiff a vexatious litigant). We stated that the appeal might be dismissed for want of jurisdiction unless McCray filed with the court within twenty-one days a response showing grounds for continuing the appeal. McCray has filed a response, but it fails to show grounds for continuing the appeal. Because there is not an appealable order or a final judgment, we dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f). PER CURIAM Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray concurs in the judgment with a note as follows: As described in my note to an order rendered in this proceeding on September 12, 2007, I would have dismissed this proceeding a long time ago.) Appeal dismissed Opinion delivered and filed March 12, 2008 [CV06] LL> No. 10-04-00029-CV Texas MRG, Inc., Appellant v. Shannon Schunicht, Appellee From the 85th District Court Brazos County, Texas Trial Court No. 03-000481-CV-85 ABATEMENT ORDER Shannon Schunicht filed a declaratory judgment suit against Marshall Hussain and Texas MRG, Inc, a/k/a Texas Mortgage and Real Estate Group, Inc. Because no answer was filed by either party, Schunicht obtained a default judgment against both parties. Hussain and Texas MRG both filed motions for new trial. The trial court denied Texas MRG’s motion for new trial and granted Hussain’s motion for new trial on the basis that Hussain was in bankruptcy at the time the default judgment was granted. Texas MRG appeals. Because the granting of Hussain’s motion for new trial made the default judgment an interlocutory order, the judgment is not final. The Clerk of this Court notified Texas MRG that the appeal was subject to dismissal and that the appeal would be dismissed for want of jurisdiction if a response was not filed showing grounds for continuing the appeal. Texas MRG and Schunicht filed a joint motion to abate claiming that the parties intended but overlooked having an order of severance signed. Rule of Appellate Procedure 27.2 states that an “appellate court may allow an appealed order that is not final to be modified so as to be made final and may allow the modified order and all proceedings relating to it to be included in a supplemental record.” Tex. R. App. P. 27.2. Therefore, the parties’ joint motion to abate is granted, and we abate this appeal. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001); Harrison v. TDCJ-ID, 134 S.W.3d 490, 491 (Tex. App.—Waco 2004, no pet.); Iacono v. Lyons, 6 S.W.3d 715, 716-17 (Tex. App.—Houston [1st Dist.] 1999, order). Texas MRG has 30 days after the date of this order to take action to cure the jurisdictional defect and to request and pay for the district clerk to file a supplemental clerk's record containing a signed order granting the severance or a signed final judgment that explicitly memorializes the severance. See Iacono, 6 S.W.3d at 716-17. If such supplemental clerk’s record is not filed in this Court, we will dismiss the appeal for want of jurisdiction. PER CURIAM Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray dissents with a note: I would dismiss the appeal for want of jurisdiction.) Appeal abated Order issued and filed May 25, 2005 Do not publish